FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE/ DUBLIN MID LEINSTER - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation No's r-111799-ir-11/TB & r-112096-ir-11/TB
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner Recommendation No's r-111799-ir-11/TB & r-112096-ir-11/TB. The issue concerns two employees of St Columcilles Hospital, Loughlinstown, Co Dublin who are currently employed in the Mortuary Department as Senior Pathology Technician and Basic Pathology Technician respectively. The Union's position is that the workers should be regularised in these posts and be paid the appropriate retrospection. Management's position is that there are currently discussions at national level in relation to regularising positions but that it is unable to make appointments by designation.
The issue was referred to a Rights Commissioner for investigation. His Recommendations issued on the 14th December, 2011 and found in favour of the workers' position for regularisation and retrospection to the dates that they took up their respective roles. On the 11th January 2012, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 24th April, 2012.
UNION'S ARGUMENTS:
3 1 Both workers have been carrying out their roles in the Mortuary Department since 2009, without the appropriate rate of pay or any acting-up allowances. It is unacceptable that the workers' continue to carry out these roles without any formal recognition or regularisation of their posts.
2 It is almost a certainty that they will be excluded from any national talks on regularisation as previously only those in payment of acting up allowances have met the eligibility criteria.
COMPANY'S ARGUMENTS:
4 1 Management is unable to appoint the workers by designation as a result of the current economic climate and the various financial restrictions in place.
2 The workers will be included in the national talks on regularisation as management accepts that they are acting up in their respective roles albeit without the payment of acting-up allowances which have been rescinded by the current moratorium.
DECISION:
This is an appeal by the HSE of a Rights Commissioner’s Recommendation which found in favour of the Claimants’ claim for regularisation of their posts. The Union on behalf of the two Claimants stated that since July 2009 they had been carrying out the roles of Senior Pathology Technician and Basic Pathology Technician, respectively, and held that Hospital Management’s failure to regularise their employment within these posts was a gross injustice.
HSE appealed the Right’s Commissioner’s Recommendation, stating that to concede the claim would be in breach of the following:-
- •DOH Circular 10/71 Appointment and Conditions of Service of Officers and Servants under Health Boards,
•HSE HR Circulars 10/2009 and 15/2009 Moratorium on Recruitment and Promotions in the Public Sector
•Public Service Agreement 2010-2014;
•Financial Emergency Measures in the Public Interest (No.2) Act, 2009;
•Public Service Management (Recruitment & Appointments) Act, 2004.
Therefore, the HSE submitted that it could not make appointments by designation. However, it referred to ongoing negotiations between the HSE and Unions at national level designed to agree regularisation arrangements similar to those already agreed for clerical/administration staff in acting Grades 3 to 7. HSE management were confident that the Claimants could be encompassed by a mapping/scoping exercise currently being undertaken to establish the range and extent of persons in acting positions in other grades/groups and categories of staff.
Having considered the positions of both parties as expressed in their oral and written submissions, the Court notes that HSE management indicated to the Union that it was willing to designate the Claimants as acting up in their respective roles, however, without agreeing to payment of an acting-up allowance as such allowances were rescinded by the above-mentioned moratorium. The Court accepts the assurances given by the HSE that the Claimants will be covered by the mapping/scoping exercise and the anticipated regularisation agreement and that their positions will be regularised in accordance with that agreement in due course.
However, in the event that this is not the outcome, the Court recommends that the Claimants may return to the Court for further consideration of their position in the light of the appeal when the Court will issue a definitive Decision on the case.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th May 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.